Author: Andrew Taslitz

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Sonia Sotomayor: At Last a Bronx Candidate!

     Our emotions can surprise us sometimes. When Obama named Sonia Sotomayor as his nominee to replace Justice Souter on the United States Supreme Court,  I was intellectually pleased that he had nominated an apparently outstanding candidate who would be another woman, and the first Hispanic woman, to sit on the Court. But I found that what really enthused me about Sotomayor was her Bronx roots — just like me! Her biography is well-known by now, but I reiterate here a few relevant high points: she grew up for part of her early life in the South Bronx, near Yankee stadium;  she came from modest means; she is probably a Yankees fan; and she, or at least her mother (the newspaper stories I have read have been a bit unclear on this point) moved “up” at one point to live in the East Bronx in the subsidized housing project known as Co-op City.

     I too grew up in the West Bronx, not too far from Yankee Stadium. My maternal grand-dad, Joe, lived only three blocks from the stadium. Unlike Sotomayor, I was lucky enough to have my parents both alive until I hit middle age (my dad is still alive and kicking at 86!). My mom  was a full-time, stay-at-home mom. My dad was the sole breadwinner, first as a delivery man for a dry cleaning store, then, in later life, as a shirt salesman. My memories as a young kid are of scully (a bottle-cap game played on the hot summer tar in the middle of the street when cars weren’t approaching), stoop-ball, open fire hydrants gushing water in August, bullies, and gangs. In 6th and 7th grade I was routinely beaten up and threatened at knife point. So much so in 7th grade that I was terrified to go to school.

     But I also loved school and worked hard at it, helped by my dad’s baby brother, Eugene, who had managed to go to college with the aid of the federal government as a  Korean War Vet and who taught junior high school. Money was tight but not impossible. We ate three squares a day, had a loving home, and friends and neighbors passed their time chatting on the sidewalk, visiting each other’s apartments for coffee and danish, or even occasionally going out to the local Chinese restaurant. When I was 12, we moved to Co-op City, and I couldn’t believe my good fortune! Yes, Co-op City was subsidized housing, but it was then quite safe. The bullying stopped, and we lived in a brand new apartment. Otherwise, life was pretty much the same. Read More

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Ethics and Government Lawyers Redux: Jeff Powell’s Happy Constitution

     In an earlier post, I noted that two recent books had important things to say relevant to the ethics of government lawyers. That first post reviewed one of those books. This post reviews the second, H. Jefferson Powell’s beautifully written and spiritually uplifting new book, Constitutional Conscience: The Moral Dimension of Judicial Decision (2008). Despite what the book’s title might suggest,  Powell’s lessons concern the ethics that should guide all constitutional decisionmakers, not only government lawyers. Indeed, his lessons explicitly apply to such lawyers as well, including a chapter-length illustration. Here I simply summarize his ethical theory, leaving it to the reader to imagine applications.

     I note one preliminary point: while much constitutional law scholarship is depressing, either foolishly pretending law to be a mechanical enterprise divorced from politics or a cynical one masking politics,  Jeff Powell offers a third, happier way ignored by fools and cynics alike: that of virtue. Those embracing the first two approaches may see Powell’s way as hopelessly idealistic, but Powell himself sees it as highly realistic, and his extended examples, which I do not have space to recount here, strongly support the pragmatic viability of his suggestions. Read More

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Government Lawyers’ Ethical Obligations and the War on Terror

Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

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SCOTUS’s Troubling View of the Truth in Exclusionary Rule Cases

I plan for several of my blog entries this month to address the United States Supreme Court’s confused conception of the role of truth-seeking at trial, particularly as revealed in its constitutional criminal procedure jurisprudence. My primary examples will be drawn from the Court’s various opinions this term concerning the scope of the exclusionary rule. Today’s entry focuses on the rule’s application in the Sixth Amendment right to counsel context in Kansas v. Ventris, 556 U.S. __ (2009).

Donnie Rae Ventris and Rhonda Teel allegedly shot and killed Ernest Hicks in his home, driving off in Hicks’s truck with $300 of his money and his cell phone. The chief charges filed against the two were murder and aggravated robbery. But the state dropped the murder charge against Teel in exchange for her pleading guilty to robbery and testifying that Ventris was the shooter. Before Ventris’s trial, officers planted an informant in Ventris’s jail cell, an informant willing to testify that during his conversations with Ventris, Ventris admitted that “he’d shot this man in his head and his chest” and taken “his keys, his wallet, about $350.00, and…a vehicle.”

The state would later admit that this statement was obtained in violation of Ventris’s Sixth Amendment right to counsel on the pending charges, a right triggered by the start of formal criminal proceedings. At trial, Ventris testified, blaming the robbery and shooting entirely on Teel. The state argued that even if Ventris’s statement to the jailhouse informant could be excluded in the state’s case-in-chief as violative of the Sixth Amendment, the statement was now admissible to impeach Ventris by contradicting his testimony. Such contradiction would demonstrate that Ventris had lied to the jury.

The trial court agreed, admitting the statement allegedly made by Ventris to the jailhouse informant, though giving the jury an instruction to “consider with caution” all testimony given in exchange for benefits from the state. The jury acquitted Ventris of felony murder and misdemeanor theft but convicted him of the aggravated burglary and robbery counts. The Kansas Supreme Court reversed on Sixth Amendment grounds, but the United States Supreme Court instead agreed with the trial judge. Impeachment of the accused by an uncounseled statement allegedly made to a jailhouse snitch absent the presence of the accused’s counsel — whose presence the Sixith Amendment mandated — was entirely constitutional, at least in the high Court’s eyes.

Here is where the Court’s troubling notions of truth kicked in.

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